Edmond v. United States

Section 323(a) authorizes the Secretary of Transportation to appoint officers and employees of the Department of Transportation and to prescribe their duties and powers. The petitioners conceded that Coast Guard Court of Criminal Appeals judges were officers of that Department. The statute's plain language therefore encompassed their appointment, even though it did not specifically name military appellate judges.

The petitioners argued that Article 66(a) of the Uniform Code of Military Justice gave each Judge Advocate General exclusive appointment authority over judges of that service's Court of Criminal Appeals. The Court rejected that reading because Article 66(a) speaks of judges being "assigned" to the court, not "appointed" to office.

The distinction mattered under Weiss. Congress has consistently used appointment language when creating an office that requires a separate Appointments Clause appointment, while using terms such as assignment or detail for placing an already appointed officer in a particular role. Article 66(a) thus governs the Judge Advocate General's authority to assign judges and organize panels, not authority to appoint them.

Reading Article 66(a) to vest appointment power in a Judge Advocate General would also create a serious constitutional problem. Congress may vest appointment of inferior officers only in the President, courts of law, or heads of departments; a Judge Advocate General is none of these. The Court adopted the reasonable, constitutionally sound interpretation that Article 66(a) concerns assignment, leaving the Secretary's statutory appointment authority intact.

The Appointments Clause requires presidential nomination and Senate confirmation for principal officers, but permits Congress to vest appointment of inferior officers in the President alone, courts of law, or department heads. Because Congress authorized the Secretary of Transportation, a department head, to appoint these judges, the appointments were constitutional only if the judges were inferior officers.

The Court explained that an officer's exercise of significant governmental authority establishes that the person is an officer rather than a mere employee; it does not establish that the officer is principal. The judges' substantial duties, including reviewing convictions, constitutional claims, factual findings, and sentences, therefore did not by themselves make them principal officers.

An inferior officer is generally one whose work is directed and supervised at some level by other officers appointed by the President with Senate confirmation. This supervisory relationship, rather than simply the relative importance of an office, best fits the Appointments Clause's concern with political accountability.

The Coast Guard Judge Advocate General exercised meaningful administrative control. He prescribed procedural rules, participated in setting policies for court-martial review, and could remove a judge from the judicial assignment without cause. Although he could not direct the outcome of a particular case or reverse the court's decisions, those limits did not eliminate the substantial supervisory relationship.

The Court of Appeals for the Armed Forces could review and reverse decisions of the Courts of Criminal Appeals in specified circumstances, including cases selected for review by the Judge Advocate General or by the appellate court itself. Its review of factual matters was narrower, but the key point was that Court of Criminal Appeals judges could not render a final decision for the United States unless other Executive Branch officers permitted them to do so.

Freytag v. Commissioner did not require a contrary result. It did not decide whether Tax Court judges were principal officers, and the Tax Court lacked both a comparable Executive Branch reviewing tribunal and an official comparable to the Judge Advocate General, who could prescribe procedures, remove judges from assignments, and seek review of decisions.